Article by Rebecca Trigger and Samantha Goerling for ABC News

A controversial heritage law aimed at preventing another Juukan Gorge disaster has passed WA Parliament.

The new law replaces outdated rules including the controversial Section 18 approvals process, contained in the Aboriginal Heritage Act 1972, which allowed the destruction of a 46,000-year-old sacred site at Juukan Gorge by iron ore giant Rio Tinto last year.

The demolition was approved despite traditional owners, the Puutu Kunti Kurrama and Pinikura (PKKP) people, warning of the site’s cultural significance.

The Aboriginal Cultural Heritage Bill 2021 was passed by Western Australia’s Upper House last night.

The new law includes recognition of Aboriginal cultural heritage as places, objects, cultural landscapes and ancestral remains.

It aims to create a system for Aboriginal people to determine what qualifies as Aboriginal cultural heritage and therefore is afforded protection under the legislation.

It differs from the old Aboriginal Heritage Act, which established a statutory committee to evaluate the importance of Aboriginal cultural heritage on behalf of the Aboriginal community.

The new law establishes an Aboriginal Cultural Heritage Council — which will be made up of a majority of Aboriginal people — to oversee the new regime, provide advice to the Minister, approve cultural heritage services, permits and plans.

Minister’s final say questioned

However, some groups have dismissed the law as ineffective and argued it will not prevent another situation such as the destruction of the Juukan Gorge site.

Among their concerns was the WA Minister for Aboriginal Affairs retaining the final say in circumstances where traditional owners and mining companies could not agree.

The new law gives no rights to traditional owners to appeal to the State Administrative Tribunal against decisions by the minister.

National Native Title chair Kado Muir said the state government had missed an opportunity to deliver an “effective transformation between the settler state and Aboriginal people”.

“They’ve preserved the rights of the settler state to destroy Aboriginal sites without involvement and capacity of Aboriginal people to say no,” Mr Muir said.

He said the new law ignored the Federal Government Inquiry into the destruction of Juukan Gorge’s interim report recommendations.

The Federal Senate inquiry, titled “Never Again”, recommended the WA Government, among other things, replace the Aboriginal Heritage Act with new legislation that:

“As a minimum (ensures) Aboriginal people have meaningful involvement in and control over heritage decision making, in line with the internationally recognised principles of free, prior and informed consent.”

Mr Muir said the new law did not make room for decisions to be made freely by Aboriginal groups.

“What this legislation does is it gives an opportunity for parties to have negotiations, but when they don’t agree it goes to the Minister, and the minister has the final say on the capacity to destroy an Aboriginal site,” he said.

Law flawed, says lawyer Hannah McGlade

Human rights lawyer and academic Hannah McGlade said the bill fell short of safeguarding against the future destruction of sites like Juukan Gorge.

She said she, along with other Indigenous leaders including Mr Muir, had reached out to the UN Committee on Race Discrimination with their concerns.

It resulted in the UN committee sending a letter to the WA government requesting more information in relation to allegations that there was not adequate time for consultation and the lack of appeal process on a minister’s decision.

“The leaders in this area do not accept a continuing law that says the minister can have the final say over all Aboriginal heritage and cultural sites,” Dr McGlade said.

“That is not in keeping with human rights law, so there will be continued movement to reform this law and to bring it up to a standard that respects our human rights obligations and Aboriginal people can be satisfied with.”

Bill ‘practical’, prominent Yindjibarndi leader says

Others support the bill as a practical way forward.

Yindjibarndi Corporation chief executive Michael Woodley said he did not see any issues with how the bill governed negotiations with developers.

“I think the sticking point for many of us is who gets to make the final decision,” he said.

“(But) we have to be realistic and practical about the role of this minister or any minister that sits in power over these types of matters.

“To my understanding, the minister doesn’t make a decision on what’s an important site and how a site should be managed.

“The minister will step in (at) the time that we can’t agree on certain aspects, and then there will be another consultation process where the minister gets involved and starts to mediate.

“From my point of view I see that as being practical.

“The onus of responsibility in terms of how those are made heritage sites and, importantly, how they get protected should be put in sole responsibility of First Nations people.

“And educating those developers in terms of what they can and can’t do in respect and in regards to the development.

“So if we fail on that process … and we get to the minister having the final say on what’s in the best public interest, then I think we’ve failed as First Nations People, and developers, in not seeing there is a way forward in … how we can find the balance in terms of protecting sites and these operations going ahead.”

Kimberley Land Council and Yamatji Aboriginal Corporation reject new law

The Kimberly Land Council (KLC) and the Yamatji Marlpa Aboriginal Corporations have both issued statements condemning the passage of the bill in its current form.

KLC Chair Anthony Watson said he felt “deep sadness” seeing the bill passed.

“It’s a devastating day for our heritage,” the statement said.

“The government has wasted this once-in-a-generation opportunity to make change, and it will be at the expense of our irreplaceable dreaming sites.

“Once again, Aboriginal people have not been listened to, not been respected and our culture has been left vulnerable to destruction.”

YMAC said the opportunity to co-design the bill had been missed.

“WA Traditional Owners got so fed-up being dismissed by the state government when asking to meet with them and other interested parties to go over the proposed bill together, that YMAC and other representative organisations were told to organise a forum for that express purpose.

“So, we did just that, and arranged for an ‘Aboriginal Cultural Heritage Protection Workshop’.

“Then, almost immediately after we made the announcement of the workshop, the state announced their intention to introduce the ACH bill to parliament.

“Now that the bill has been passed, traditional owners’ focus has had to shift from what they can do to craft a bill that supports what they need, to now living with legislation that they did not support as it was last presented to them.”